Com. v. Bowie, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHNNIE LEE BOWIE
Appellant No. 497 WDA 2016
Appeal from the Judgment of Sentence January 26, 2016
in the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0009855-2014
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 16, 2017
Appellant, Johnnie Lee Bowie, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas following his bench
trial convictions of persons not to possess firearms,1 and two counts of theft
by unlawful taking―moveable property.2 Appellant challenges the weight of
the evidence and the discretionary aspects of his sentence. We affirm.
The trial court’s opinion summarized the relevant facts as follows:
[Appellant] and Julie Cosentino were involved in a
romantic relationship. On April 26, 2014, they spent the
night together at Ms. Cosentino’s apartment. After she
awoke the next morning, Ms. Cosentino decided that she
wanted to go to the local Giant Eagle supermarket to buy
some food for breakfast. [Appellant] remained in the
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1).
2
18 Pa.C.S. 3921(a).
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residence. When Ms. Cosentino returned home,
[Appellant] was gone. Cash in the amount of
approximately $2,000 and a Taurus nine millimeter firearm
were missing from Ms. Cosentino’s apartment. The cash
had been kept inside Ms. Cosentino’s bedroom closet. The
firearm had been kept in a backpack in Ms. Cosentino’s
bedroom. Ms. Cosentino suspected [Appellant] of taking
the items because he had previously seen her retrieve
cash from her closet.
Ms. Cosentino immediately attempted to contact
[Appellant]. She sent him text messages advising him
that she needed the cash and asking him to return the
cash and the firearm. [Appellant] sent text messages back
to Ms. Cosentino telling her, “I'll be back, I promise.” He
texted, “I'll explain.” He further texted
It was wrong how I did that, but things went
smooth. I know I probably lost you but here’s the
deal. I can give you $250 every other day. Shit’s
going to move.
Ms. Cosentino sent him a text message telling [Appellant]
that she wanted the gun back. [Appellant] sent her a text
message back advising that, “[y]ou can have your fucking
gun. I know what happened wasn’t cool but you are not
going to keep talking shit to me.” Ms. Cosentino never
gave [Appellant] permission to take the cash or the
firearm. . . .
Trial Ct. Op., 6/29/16, at 2-3. During the bench trial, Ms. Cosentino testified
on direct examination:
[The Commonwealth:] When did the firearm go missing?
[Witness:] The day I had woke up in April, that morning.
* * *
Q. And who else had access to your home during that
period of time?
A. Just my roommate and [Appellant].
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* * *
Q. You mentioned the gun was missing. Was there
anything else you noticed missing when you woke up on
that morning?
A. All of my money.
Q. Where had your money been?
A. I had it stashed away in [my bedroom] closet.
* * *
Q. Did you show him where the money was?
A. I believe he seen me one day get money out of my
closet. That’s the only way I could possibly think of him
knowing where it was.
* * *
Q. How much money was taken?
A. About $2,500.
* * *
Q. How did you know how much money there was?
A. I usually keep a record in my phone about how much
money I keep in that box and how much money I have in
my bank account.
Q. What did you do when you discovered these items
were missing?
A. I continuously texted him, called him. . . .
Q. You indicated that you sent text messages to him?
A. Yes.
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Q. When did you do that?
A. Immediately as soon as I came home and I noticed
that he was no longer in my place.
Q. . . . Did you notice these items were missing around
the same time you noticed [Appellant] was missing from
your home?
A. Yes.
* * *
Q. And how do you know [these text messages] are
between you and [Appellant]?
A. He’s had the same number the whole time I have
talked to him.
N.T. Trial, 10/28/15, at 10-14. On cross-examination, defense counsel
questioned Ms. Cosentino regarding the amount of money missing:
[Defense Counsel:] Now, you reported to the police officer
that [Appellant] had taken $2,500; is that right?
[Witness:] Yes.
Q. But in the text messages you are referring to $2,000?
A. I believe I say two and then I say three in another text
message just because I wasn’t 100 percent sure at the
time what amount it really was.
Id. at 21.
Appellant subsequently testified at the bench trial:
[Defense Counsel:] What did you do when you woke up on
April 26?
[Appellant]: Panicked because I was―I’m a married man.
I wasn’t supposed to be staying out all night. I jumped
up, grabbed what I could and I was running out the
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house―out of the apartment because I, you know, I
messed up, in lighter words. And she asked me―you
know, she was talking about breakfast. I said I had to go.
And she said, Why. And that’s when I told her, I’m
married. I gotta go.
Q. I believe you testified that she appeared to you to be
angry when you told her that?
A. Surprised and angry.
Q. In this conversation you had with Ms. Cosentino that
morning . . . did she mention to you that a gun or $2,000
was missing?
A. No.
* * *
Q. Did you contact [Ms. Cosentino] about it?
A. No.
Q. Why not?
A. I couldn’t actually. . . . [B]ecause when I ran out the
house in the morning I left―I didn’t have my phone. So I
couldn’t call her either.
Q. When you woke up on the morning of the 26th and left
out, you left your phone and other items at Ms.
Cosentino’s apartment?
A. When I ran out in the morning, yes.
* * *
Q. Did you send those test messages to her?
A. No, I didn’t.
Q. So you believe they are fake?
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A. They look like real messages, but they wasn’t from me.
I didn’t even have my phone to send a message.
* * *
Q. Did you steal Ms. Cosentino’s gun?
A. No.
Q. Did you steal any money, $2,000, from Ms. Cosentino?
A. No.
Id. at 39-42.
The trial court convicted Appellant of persons not to possess firearms
and two counts of theft on October 28, 2015. Thereafter, counsel filed a
motion to withdraw due to Appellant’s failure to cooperate. The court
sentenced Appellant on January 26, 2016, to five to ten years’ imprisonment
for the firearms offense, followed by two years’ probation for one of the theft
offenses. The court imposed no further penalty on the remaining theft
offense. That same day, the court granted counsel’s motion to withdraw and
appointed the Public Defender’s Office to represent Appellant.
On February 11, 2016, Appellant filed a post-sentence motion nunc
pro tunc, along with a motion for leave to file supplemental post-sentence
motions nunc pro tunc and a motion for an extension of time for the court to
decide all post-sentence motions nunc pro tunc. The court granted
Appellant’s latter two motions on February 18, 2016. Appellant then filed a
post-sentence motion nunc pro tunc, in which he raised his weight of the
evidence and discretionary aspects of sentencing claims. The court
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subsequently denied all of Appellant’s post-sentence motions on April 1,
2016. Appellant timely filed a notice of appeal on April 7, 2016. The court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
I. Whether the trial court abused its discretion in not
granting [Appellant’s] Post-Sentence Motion requesting a
new trial when the verdicts of guilty as to all three offenses
were contrary to the weight of the evidence?
II. Whether the trial court’s sentence is unreasonable,
manifestly excessive, and inconsistent with the Sentencing
Code in that the trial court relied on impermissible factors
when considering the gravity of the offenses as it relates
to the impact on the victim and the community, and failed
to consider relevant and required sentencing criteria,
including the character, personal history, and rehabilitative
needs of [Appellant], thereby violating 42 Pa.C.S.A. §
9721(b)?
Appellant’s Brief at 6.
In his first issue, Appellant argues his guilty verdicts were against the
weight of the evidence because the Commonwealth’s primary evidence, Ms.
Cosentino’s testimony, was vague, unreliable, and inconsistent. Appellant
claims Ms. Cosentino never stated that she saw Appellant with her money
and gun, but instead merely speculated based on the fact that Appellant saw
her take her money out of a box in her closet. Appellant alleges Ms.
Cosentino also admitted that her roommate’s ex-boyfriend had previously
been charged with burglarizing their apartment. Appellant also contends the
alleged text messages between Appellant and Ms. Cosentino were full of
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inconsistencies, such as the amount of money allegedly missing. Appellant
maintains Ms. Cosentino had a motive to lie and fabricate the text messages
because the morning of the alleged theft he revealed to her that he was
married. Appellant concludes this Court should vacate his judgment of
sentence and remand for a new trial. We determine that no relief is due.
Our standard of review regarding challenges to the weight of the
evidence is as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the . . .
verdict if it is so contrary to the evidence as to shock one’s
sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011)
(citations omitted).
Instantly, Appellant’s weight of the evidence issue is based solely on
the credibility of Ms. Cosentino’s testimony. Ms. Cosentino testified that on
the morning of April 26, 2014, she left Appellant at her apartment and
returned home to find Appellant missing along with her gun and
approximately $2,000. See N.T. Trial, at 10. At trial, the Commonwealth
introduced screenshots of a text message conversation taken from Ms.
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Cosentino’s phone on April 26th, which purported to show Ms. Cosentino
confronting Appellant about the missing items. Id. at 20-22. Appellant
subsequently went on to refute Ms. Cosentino’s allegations and testified that
he had left his cellphone at her apartment the morning of April 26th, after
informing Ms. Cosentino that he was married and leaving her in a state of
anger. Id. at 39-42.
The trial court, acting as the fact finder, heard the testimony of both
witnesses and found Ms. Cosentino to be credible. See id. at 63 (stating: “I
find Ms. Cosentino’s testimony to be credible, particularly in light of the fact
that she gets up, everything is fine, she goes to Giant Eagle to get
breakfast, she is gone twenty minutes. In twenty minutes her gun, her
money and [Appellant] are gone.”). After conducting a thorough
examination of the record, we conclude the court did not abuse its discretion
in finding Ms. Cosentino to be a credible witness. See Devine, 26 A.3d at
1146. Therefore, Appellant’s weight of the evidence issue merits no relief,
as his guilty verdicts do not shock one’s sense of justice. See id.
In his second issue, Appellant argues his sentence of five to ten years’
imprisonment followed by two years’ probation is manifestly excessive.
Appellant alleges the court relied on improper factors when imposing his
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sentence.3 Appellant also contends the court failed to consider mitigating
factors, including that he had taken affirmative steps to become a
rehabilitated member of society by being steadily employed, completing
various programs while incarcerated, and having the support of his family
and community. Appellant concludes this Court should vacate his judgment
of sentence and remand for a new sentencing hearing. We determine that
no relief is due.
This Court has stated that:
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four part analysis to
determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that
the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. §
9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
3
Appellant’s brief fails to articulate what improper factors the trial court
allegedly relied on during sentencing. Therefore, this argument is waived.
See Pa.R.A.P. 2119(a), (f).
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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)
(quotation marks and some citations omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. A claim that a sentence is
manifestly excessive might raise a substantial question if the appellant’s
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Commonwealth v. Mouzon,
812 A.2d 617, 627 (Pa. 2002). However, “[a] claim that a sentencing court
failed to consider certain mitigating factors does not raise a substantial
question . . . .” Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006) (citations omitted).
Initially, Appellant timely appealed, preserved his discretionary aspects
of sentencing issue in his post-sentence motions nunc pro tunc, and included
a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533.
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Appellant’s Rule 2119(f) statement, however, fails to indicate where his
sentence fell in the sentencing guidelines. See Goggins, 748 A.2d at 727.
Nevertheless, Appellant asserts the trial court imposed a manifestly
excessive sentence. Generally, such a bald assertion does not raise a
substantial question. See Mouzon, 812 A.2d at 627. In any event, we
shall address the merits of Appellant’s issue.
This Court has stated:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted). In making a reasonableness determination, a court should
consider four factors: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) the findings upon which the sentence was based; and (4)
the guidelines promulgated by the commission. 42 Pa.C.S. § 9781(d)(1)-
(4).
A sentence may be found to be unreasonable if it fails to properly
account for these four statutory factors, or if it “was imposed without
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express or implicit consideration by the sentencing court of the general
standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d
957, 964 (Pa. 2007). These general standards mandate that a sentencing
court impose a sentence “consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S. § 9721(b).
“[W]here the sentencing court imposed a standard-range sentence
with the benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.
2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (stating “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code”). Under such circumstances, “we can assume the
sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Corley, 31 A.3d at 298 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)) (quotation marks
omitted).
Here, Appellant’s sentence is in the standard range of the Sentencing
Guidelines. Because the trial court reviewed Appellant’s presentence
investigation report, we assume it took into consideration the mitigating
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circumstances raised in Appellant’s brief, such as his steady employment,
family and community support, and the completion of various programs
during incarceration. See Corley, 31 A.3d at 298. Moreover, the trial court
summarized its reasons for imposing Appellant’s sentence:
This [c]ourt considered [Appellant’s] lengthy criminal
history which includes, among other crimes, a prior
conviction for a felony possession of a firearm, two
separate felony drug convictions, three separate felony
theft convictions, two separate felony criminal trespass
convictions and one felony burglary conviction.
[Appellant] has been committed and re-committed to state
custody at least four times. The [c]ourt was also
concerned that [Appellant] never returned the firearm he
stole and that the firearm was unaccounted for as of the
time of sentencing.
Based on the totality of the circumstances, this [c]ourt
believed [Appellant] had multiple opportunities to conform
his conduct to the law and he repeatedly chose not to do
so. He further demonstrated that he is a danger to the
community. This [c]ourt considered all relevant
sentencing issues, most notably [Appellant’s] substantial
rehabilitative needs, protection of the public, deterring
[Appellant] from engaging in future similar conduct and
the impact on [Ms. Cosentino]. The sentence imposed in
this case was not unduly harsh as it was within the
standard range of the sentencing guidelines and it properly
reflected [Appellant’s] culpability in this case.
Trial Ct. Op. at 8-9. We discern no abuse of discretion in the trial court’s
conclusions. See Sheller, 961 A.2d at 190. Therefore, Appellant’s sentence
of five to ten years’ imprisonment followed by two years’ probation was not
manifestly excessive. See Corley, 31 A.3d at 298; Moury, 992 A.2d at
171. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2017
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